United States District Court, D. Columbia.
For CENTER FOR FOOD SAFETY, Plaintiff: Paula Naomi Dinerstein, LEAD ATTORNEY, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Washington, DC; Paige M. Tomaselli, Sylvia Shih-Yau Wu, PRO HAC VICE, CENTER FOR FOOD SAFETY, San Francisco, CA.
For PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, SIERRA CLUB, BEYOND PESTICIDES, Plaintiffs: Paula Naomi Dinerstein, LEAD ATTORNEY, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Washington, DC; Paige M. Tomaselli, PRO HAC VICE, CENTER FOR FOOD SAFETY, San Francisco, CA.
For SALLY JEWELL, Secretary of United States of Department of the Interior, DANIEL M. ASHE, Director of United States Fish and Wildlife Service, U.S. FISH AND WILDLIFE SERVICE, an administrative agency of the United States Department of the Interior, Defendants: Ruth Ann Storey, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
For AMERICAN FARM BUREAU FEDERATION, DUCKS UNLIMITED, INC., DELTA WILDLIFE, BIOTECHNOLOGY INDUSTRY ORGANIZATION, CROPLIFE AMERICA, Movants: Karen Ellis Carr, LEAD ATTORNEY, ARENT FOX LLP, Washington, DC.
COLLEEN KOLLAR-KOTELLY, United States District Judge.
This challenge pertains to certain farming practices on five refuges that are part of the National Wildlife Refuge System, the " largest system of lands managed primarily for wildlife conservation in the world." AR02568. That system is managed by the Fish and Wildlife Service (" FWS" or " the Agency" ), one of the defendants in this action. Plaintiffs are four national nonprofit organizations: the Center for Food Safety, Public Employees for Environmental Responsibility, Sierra Club, and Beyond Pesticides. Plaintiffs filed this suit challenging FWS's decisions permitting the farming of genetically modified crops and the use of various pesticides on refuge system lands within five refuges: the Detroit Lakes Wetlands Management District, in northwestern Minnesota; the Iowa Wetlands Management District, in north central Iowa; the Swan Lake National Wildlife Refuge, in north central Missouri; the Crab Orchard National Wildlife Refuge, in southern Illinois; and the Cypress Creek National Wildlife Refuge, also in southern Illinois. Each of these refuges is within Midwest Region--Region 3--of the National Wildlife Refuge System, which encompasses national wildlife refuges and wetland management districts within Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. AR002568.
First, Plaintiffs claim that FWS violated the National Environmental Policy Act (" N E PA " ) and the Administrative Procedure Act (" A PA " ) by allowing farming on the five refuges subject to this action without NEPA analysis of the site-specific impacts of pesticide use on refuge lands. Plaintiffs challenge both the use of seeds treated with neonicotinoid pesticides, specifically, and the application of a variety of pesticides in farming activities, in general. Second, Plaintiffs claim that FWS violated NEPA and the APA by allowing the farming of genetically modified crops--specifically, corn and soybeans--on refuge land within the Detroit Lakes Wetlands Management District and the Iowa Wetlands Management District. Third, Plaintiffs claim that FWS violated the National Wildlife Refuge System Administration Act of 1966 and the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. § § 668dd-ee (together, " Refuge Act" ) and their implementing regulations by failing to revise the Comprehensive Conservation Plan for the Cypress Creek National Wildlife Refuge pursuant to the statutorily-prescribed schedule. Plaintiffs seek declaratory and injunctive relief with respect to each claim. Specifically, Plaintiffs ask that the Court vacate the FWS decisions that allow pesticide use and farming of genetically modified crops at each of the five refuges until FWS prepares an adequate NEPA analysis for the respective refuges and, with respect to the Cypress Creek National Wildlife Refuge, updates the Comprehensive Conservation Plan as well.
Before the Court is Plaintiffs'  Motion for Summary Judgment and Defendants'  Cross-Motion for Summary Judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART Plaintiffs'  Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART Defendants'  Cross-Motion for Summary Judgment. Specifically, with respect to the NEPA claims regarding the farming of genetically modified crops, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion with respect to the Iowa Wetland Management District, and the Court GRANTS Plaintiffs' Motion and DENIES Defendants' Motion with respect to the Detroit Lakes Wetland Management District. With respect to the NEPA claims regarding pesticide use, the Court GRANTS Plaintiffs' Motion and DENIES Defendants' Motion regarding the use of neonicotinoid pesticides at all five refuges, and the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion regarding other pesticide use at those refuges. With respect to the Refuge Act claim regarding the updating of the Cypress Creek National Wildlife Refuge Comprehensive Conservation Plan, the Court DENIES Plaintiffs' Motion and GRANTS Defendants' Motion.
In sum, the Court GRANTS Plaintiffs' Motion (and denies Defendants' Motion) with respect to the use of genetically modified crops at the Detroit Lakes Wetland Management District and with respect to the use of neonicotinoid pesticides but DENIES it (and grants Defendants' Motion) in all other respects.
The National Wildlife Refuge system includes more than 150 million acres of public lands and waters and includes 553 national wildlife refuges and 38 wetland management districts throughout the United States. AR002566. " The mission of the System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." 16 U.S.C. § 668dd(a)(2). " [E]ach refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established." Id. § 668dd(a)(3)(A).
Row crops have been farmed on national wildlife refuges and wetland management districts for decades to meet refuge objectives. AR002566. Frequently, those crops are farmed by private individuals--rather than by FWS directly--through cooperative agreements or special permits. See AR002584-85. Cooperative farming occurs on all five of the refuges challenged in this action. See AR0000036-40. Genetically modified corn and soybeans are currently grown on only two of the challenged refuges, the Iowa Wetland Management District and the Detroit Lakes Wetland Management District. See id. No pesticide can be used on the refuge system land unless it is approved by the FWS through a Pesticide Use Proposal. AR002603. Currently, a variety of pesticides are approved for use on all five of the refuges challenged in this action. AR004932-4934 (Crab Orchard National Wildlife Refuge); AR005126-5128 (Cypress Creek National Wildlife Refuge); AR005196-5200 (Detroit Lakes Wetland Management District); AR005247-5249 (Iowa Wetland Management District); AR005335-5337 (Swan Lake National Wildlife Refuge). The Refuge Act requires FWS to prepare a Comprehensive Conservation Plan for each refuge. See 16 U.S.C. § 668dd(e)(1). A Comprehensive Conservation Plan is " a document that describes the desired future conditions of a refuge or planning unit and provides long-range guidance and management direction to achieve the purposes of the refuge." 50 C.F.R. § 25.12. A Comprehensive Conservation Plan has been prepared for each refuge subject to this action. See AR000088-1328.
II. LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, " [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." However, " when a party seeks review of agency action under the APA [before a district court], the district judge sits as an appellate tribunal. The 'entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083, 348 U.S.App.D.C. 77 (D.C. Cir. 2001). Accordingly, " the standard set forth in Rule 56[ ] does not apply because of the limited role of a court in reviewing the administrative record.... Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review." Southeast Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010).
The APA " sets forth the full extent of judicial authority to review executive agency action for procedural correctness." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). It requires courts to " hold unlawful and set aside agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). " This is a 'narrow' standard of review as courts defer to the agency's expertise." Ctr. for Food Safety v. Salazar ( Midwest I ), 898 F.Supp.2d 130, 138 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). An agency is required to " examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43 (internal quotation omitted). The reviewing court " is not to substitute its judgment for that of the agency." Id. Nevertheless, a decision that is not fully explained may be upheld " if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas--Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).
Plaintiffs challenge the use of pesticides and the farming of genetically modified crops pursuant to the National Environmental Policy Act (" N E PA " ) and the Refuge Act. The Court addresses the NEPA claims followed by the Refuge Act claim.
A. NEPA Claims
NEPA " places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action," Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983), and " it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. N E PA 's requirements are " procedural," requiring " agencies to imbue their decisionmaking, through the use of certain procedures, with our country's commitment to environmental salubrity." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94, 290 U.S.App.D.C. 371 (D.C. Cir. 1991). Courts may not substitute their own policy judgments for those of the agency. See N. Slope Borough v. Andrus, 642 F.2d 589, 599, 606 n.93, 206 U.S.App.D.C. 184 (D.C. Cir. 1980). " NEPA merely prohibits uninformed--rather than unwise--agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
NEPA requires an agency to prepare an Environmental Impact Statement for any proposed major federal action " significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An Environmental Assessment is a " concise public document" that " [b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a). See also id. § 1501.4(b). If the agency determines that a full Environmental Impact Statement is not necessary--after preparing an Environmental Assessment--it must prepare a Finding of No Significant Impact explaining why the action will not have a significant impact on the environment. Id. § § 1501.4(e), 1508.13; see ...